First, We Kill All The Lawyers

A lot of what goes wrong in America today is the fault of the lawyers.

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Pick Your Fight

I’ll let you in on a little known secret: I used to be somewhat well-off.


Sometimes people will ask me how I became a criminal defense lawyer. I tell them the truth: I used to have a high-paying job. I got tired of it. Decided having (enough) money was just too much for me, so I decided to go to law school and become a lawyer instead.

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Great Job! You’re Fired!

If there’s one thing the San Joaquin Valley of California hates more than anything, it’s a good defense attorney. In Kings County, it’s long been rumored that if you do your job — your actual job of defending clients — you will lose your right to defend indigent clients. If you represent people for money in that county, you will find your ability to practice severely limited by the court. So far, I’ve not heard of one case where this caused a problem for the Fifth Appellate District Court, so if the rumors are true, I guess it’s constitutional.

The courts — and no doubt the attorneys I’ve seen counseling their clients (plural) en masse about plea agreements in the foyers of the County courthouses — would say I’m mistaken. I heard it wrong. They fight like hell. Like hell they fight! Like hell.

Now federal prosecutors in Fresno say what’s good for Kings County is good for the King.

There’s just one problem: the defendants are police officers.

And if there’s one thing the San Joaquin Valley of California loves more than anything, it’s a police officer.

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Avoiding An Unfortunate Death

Frankly, the title of this post is a little bit of milquetoast, considering the heart of the topic I want to mention.  I picked the title as a kind of play on words, but, again, the heart of this post is anything but play.

This blog hasn’t gotten my full attention.  It is something of the poor stepchild to my older, more-established law blog.  Probable Cause: The Legal Blog with the Really Low Standard of Review is my real baby; it’s where I pour my heart and soul.  In fact, I’d never have set up this second blog if it weren’t for the fact that I got lucky and managed to buy when another local attorney apparently let registration on the name lapse.

Originally, I intended to have Fresno Criminal Defense focus on more “local” issues — at least through Central California — and have Probable Cause be my blog for every other kind of legal blogging.  Unfortunately, I’ve found that sometimes writing about local issues can get me into “sensitive” areas where I could potentially cause more harm than good.

I don’t want Fresno Criminal Defense to fade into nothingness, which it will do if I don’t find more to blog about here. I want to avoid its unfortunate death.

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The Thin Blue Pencil

I don’t usually read articles by Internet marketers — I’m with the group that believes Internet marketers are primarily people who didn’t make it in some other line of work, so they transmogrify into “experts” who try to tell others how to do what they couldn’t do — but I ran across this article recently by Gal Baras on the importance of social networking.

Gal notes,

These days, networking is synonymous with a successful business. Networking is also the key to a good social life. No matter how big our office, how colourful our flyers, how powerful our computers or how many degrees we have, it is the quality of relationships we establish with ourselves, our family, our friends, our customers, our suppliers and, more than anything else, with people we don’t know, that will determine our success in our personal life or in business.

And as a story in yesterday’s Fresno Bee demonstrates, what’s true in business and our personal life is also true in law.

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How Cops Think

Scott Greenfield, the New York criminal defense attorney with the Simple Justice blog, provides today two interesting examples of how cops think.  Or don’t, as the case may be.

Fresno County Sheriff Mims provides her own example.

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234 Years

Today is the Fourth of July.  Independence Day. We often think of it as America’s Birthday.  But it is not really the Birthday of the United States; it is closer to the birthday of the colonial confederation that would give rise to the the “United States” of the Articles of Confederation in 1781 and to the re-constituted United States — she of the infamous Constitution of the United States — some 11 years after the signing of the Declaration of Independence.  The First Continental Congress, consisting of 12 of the 13 original colonies, predates by two years the Declaration of Independence, which was signed by the Second Congress.

How terrible the Terrible Twos were for not-so-good King George III. How wonderful the blossoming into young adolescence was the final form of our constitutionally-founded nation.  But we are old now.  The nation suffers from a kind of collective Alzheimer’s as we celebrate our two-hundred-and-thirty-fourth “birthday.”

Our Founders, those who gave birth to what has been unarguably the greatest nation on Earth — though one may doubt whether we still deserve that title — were a rebellious lot.  They would not have tolerated a police force that makes things up as it goes and almost always what is made up is contrary to law.  They would not have stood for a police force which, under the guise of making us safe, takes over our neighborhoods, placing everyone under house arrest and threatening the very safety they claim to be protecting.

This, by the way, is exactly what happened in the Tower District in Fresno less than a week ago.  As one eyewitness wrote to me:

I live in an attic apartment on [a street in the area]. The home has a separate, gated entrance that leads to a small yard and a set of stairs that lead upstairs to my apartment.

Ghetto bird flew overhead for over 15 minutes before I truly paid attention. When they started flashing in my windows, I looked outside and realized the street was blocked by 8 police cars. My downstairs neighbors were having a get together, and were still outside. They were ordered to get inside their house. Two out of three armed suspects had been apprehended earlier. The third was hiding in bushes that divide my yard and the next door apartment complex. Now, [a friend of the person who wrote this], who lives downstairs is as protective of me as his sister, who lives directly behind me. He called me and told me what was going on, recommended that I enter his house thru the back door.

Big mistake…I opened my door to walk downstairs, only to be screamed at that there was an armed and dangerous suspect outside. The helicopter immediately shined on me. I was not given any opportunity to speak. I closed the door and notified [my friend] that I was not allowed to walk outside. He had been involved in a “discussion” with an officer earlier, when he went outside on his porch to smoke a cigarette.

Thirty minutes later, it was still going on, except they are now on the megaphone, informing the “suspect” that he needed to surrender. Officers “see” him and he wasn’t getting away. At that point, my windows were open to overhear the situation.As I was being “highlighted” I walked to my window, to peek outside where in sync, three officers pointed their guns at me and another waved for me to get away from the window.

Now, I can not recall exactly, but before I got to the window, only one officer had his gun out. The others followed when I “scared” them by looking outside my second story window.

This is the world in which we now live.  Yet the lack of any appreciation for our Constitution is not the only difference between us and our ancestors.  They would have rebelled.  Those officers in the street would have found themselves under fire if they tried to corral the Founders of these United States “for their own safety.”

Our Founders would have realized the truth: there was more danger from the police locking down a neighborhood than there was from the fact that an armed gunman had run through it.

I am not afraid to live in the Tower, I am afraid of the “knee jerk” reactions from our FPD.

I had my cell in hand to film the event, or at least photograph, but earlier in the week, Kendall Simsarian had tweeted against questioning officers, or recording them. So, with the guns in my direction, I took the safer route!

I do not even know if the third suspect was even caught.

For most of the life of the United States, we lived by a set of values enshrined in the Declaration of Independence and a set of rules enshrined in the Constitution which created these United States.  Today, the values are but buzzwords; the rules have become, at best, guidelines — a means for criminal defense attorneys like me to try, usually unsuccessfully, to rein in the governmental abuses of a police force run amok.

I say this with sadness more than my own sense of rebellion.  Nobody — not even we much-maligned criminal defense attorneys — wants people who hurt other people to wander our streets unchecked.  As law student and aspiring prosecutor Laura McWilliams put it,

No one wants an innocent to be hurt; nor does anyone want a guilty individual to commit a future crime. We all live in this society….

Yet as we approach 234 years of age — 234 years during which the forces of “power” have hammered away at the rebellious spirit of the Constitution meant to limit power — criminal defense lawyer Mark Bennett responds to Laura:

[T]he system is out of balance. Convicting the accused is too easy (else innocent people would not go to prison) and sentences (especially under guidelines regimes) are too harsh. If there is the possibility of the government killing someone for a crime he didn’t commit, the train has gone off the rails.

The problem, as Mark sees it — and I agree wholeheartedly — is this:

One reason that the system is so badly out of whack is that the criminal justice system is viewed, even by law students, as a tool to protect not only our safety, but also “our collective morals.” The protection of our collective morals—the mythical province of aspiring theocrats—leads to the condemnation and prosecution of conduct that threatens our safety only tenuously, if at all.

Our legal system is not about “collective morals.”  It’s about power.  If you don’t believe me, take Jeff Gamso’s implied advice.  In writing about the unexcitement, the safeness, of the nomination of Elena Kagan — “about as non-revolutionary a choice as there could be for the [United States Supreme] Court — he noted:

I want a lawyer who’s actually practiced law.  I want someone who’s stood in the well next to some poor person charged with a crime or victimized by the police or an unfeeling government agency or a major corporation.  I want a person on the court who knows what it means to stand up for the Bill of Rights at some risk.  Someone who actually knows something about risk.

But as Paul Kennedy, blogging at The Defense Rests, says,

While we’re at the beach or cooking out, watching a baseball game or fireworks, most of us have completely lost sight of the significance of what took place in Philadelphia back in 1776 when delegates from the colonies risked their lives by signing their names to the most revolutionary of documents.

This was driven home when a man asked me where he could get a copy of what we were reading. He seemed shocked when I told him it was the Declaration of Independence.

Risk?  What risk?  We have become a risk-averse nation.  And to avoid risk, we have to limit the actions of individuals who might not agree to go along with the status quo. Individual liberties must be curtailed, lest individuals do something that puts the nebulous rest of us — “society” — at risk.  Thus Gideon points out:

The concept is dying a quick and painful death. It took only 200 odd years for the pendulum to have shifted completely in the opposite direction. By attrition, or force of sensationalism, or crowdsourced fear, the line drawn by the Constitution has turned around and is now facing those very individuals it sought to protect. The idea of individual liberties is so foreign to most, that comes as a surprise to many that the founders fought and fought hard for them.

The concept Gideon is talking about pertains to

the rights of individuals – all individuals and checks against the power of the large governmental entities. The Constitution drew a line and on the site that was protected were placed the flesh and blood individuals, the citizenry and on the side that was being warned and whose authority was being severely limited was the abstract, nameless, faceless Government.What a beautiful concept: we are individuals first and as individuals, we have rights that will not be subordinate to those of an ever-changing abstract concept.

A beautiful and dangerous concept.  A concept that disallows a police force the power to shut down entire neighborhoods and threaten the inhabitants in order to prevent the most heinous of consequences: a suspect who, however temporarily, gets away.

Thomas Jefferson, a principal drafter of the Declaration of Independence and third President of the United States, once declared the benefits of a citizenry ever-ready to rebel against its government.  “God forbid we should ever be 20 years without such a rebellion,” Jefferson wrote.

Today, as we celebrate 234 years as a country launched by the Declaration of Independence from tyranny, my own spirit continues to resonate with that exemplified by our Founders.  Like Norm Pattis,

I am an American by birth, and a lawyer by choice. Hence, I have taken an oath to uphold the Constitution and laws of the United States. But the promise of these laws sometimes rings hollow in my ears. When I read the Declaration of Independence, I am inspired by a hope that seems unredeemed. The heady days of a colony breaking from a distant overlord are long-since past. We now have our own lords, and they are no longer distant. Where do we now turn for a renewal of the spirit of liberty?

I vote that we all turn to the Declaration of Independence. And there’s no better day than today, the commemoration of the day it was signed by those who helped fight and die for its ideals, to read it and learn about its history.

The Scarlet Letter & Other Tales Of Woe

A couple of days ago over at Probable Cause: The Legal Blog with the Really Low Standard of Review, I alluded to the fact that ideas for blogging come to me faster than I am able to keep up. Although I don’t get nearly enough time to write, I’m constantly sending myself email messages from my phone saying, “blog about this!” or “blog about that!”  Then when the time comes, I feel almost overwhelmed with all I want to say and have difficulty deciding how to focus.

Today is such a day.

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The War on Rights

Well, I’m sure you noticed that this place you’ve arrived at is known as “Fresno Criminal Defense.”  So I’m also sure you’re not expecting me to write about the War in Iraq, or Afghanistan, nor will I — as I did yesterday — have anything to say about the Mexican-American War, although actually all those countries have some kind of tie-in with the War about which I will write: a War we are losing in every possible way.

A War, in fact, which we cannot win.  Because to win, you see, we’d have to be something other than what we are…

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A Modern Professional Police Force

Four years ago, Justice Scalia of the United States Supreme Court laughingly suggested that “the increasing professionalism of police forces” meant that the deterrent effect of the Exclusionary Rule the courts had previously applied to violations of constitutional rights, particularly the Fourth Amendment right against unreasonable searches and seizures, was not really necessary anymore. (See Hudson v. Michigan (2006) 547 U.S. 586; ignore the fact that Scalia had to twist the source he relied upon to arrive at his conclusion.)

“[M]odern police forces are staffed with professionals,” Scalia said.

If Fresno police chief Jerry Dyer gets his way, well, if this ever was true — and I seriously doubt it ever was — it certainly will not be going forward.

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